The Supreme Court on Tuesday took up three petitions seeking a thorough probe into the video leak controversy involving accountability court judge Mohammad Arshad Malik.
A three-member bench — headed by Chief Justice of Pakistan Asif Saeed Khosa and consisting of Justice Sheikh Azmat Saeed and Justice Umar Ata Bandial — after hearing arguments from the lawyers on all three petitions, asked the attorney general to submit recommendations.
"When the Supreme Court does everything, there are objections. When we take a step back, we are asked to take notice," CJP Khosa remarked while hearing one of the petitions.
"We have to decide whether to step in or not," the top judge said, adding: "We also need to look into the judge's [Arshad Malik] misconduct. We need to see where we need to interfere"
"We will soon decide a few things," concluded the CJP, while adjourning the hearing until July 23.
Judge Malik, who convicted ousted premier Nawaz Sharif in the Al Azizia case last year, has been accused by PML-N's Maryam Nawaz and other party leaders of delivering the verdict "under pressure". Maryam has also released videos purportedly proving her claims. The judge, however, has denied being under any pressure, making counter allegations against Nawaz Sharif and the PML-N for "bribing, threatening" him.
Amid deepening political and judicial crises, the Islamabad High Court (IHC) after consultation with the apex court removed the accountability court judge last week, following which the Law Ministry temporarily barred Arshad Malik from working.
'Judicial commission should be formed'
The bench first heard the petition of a lawyer, Ishtiaq Ahmed Mirza, filed through his counsel Chaudhry Munir Sadiq.
As the hearing commenced, the petitioner's lawyer told the bench that the video leaks scandal has raised questions about the judiciary.
He said that in her press conference on July 6, Maryam had alleged that the court was working under pressure.
"This is a sensitive matter regarding the independence and prestige of the judiciary," said Sadiq, adding: "The court should investigate the matter and determine who is responsible."
He said that all political parties, including PPP and JI, and lawyers in Pakistan have demanded an investigation into the video leaks scandal, adding that Prime Minister Imran Khan had also said that the judiciary should take notice of the matter.
Noting that there had been calls for the top judge to take suo motu notice of the controversy, CJP Khosa asked: "If we do something on the demands of people, then are we independent?"
The lawyer asked the court to form a commission to look into the matter, "even if it was just a one-person commission".
When the CJP inquired who should head the commission, the lawyer replied "a judge".
"Such a culture has been created in which if one does bad, everyone is thought to be the same," remarked the top judge. "It is said 'all judges are like this, all politicians are like this'." He then asked what the commission should look into.
"The commission should look at the truth; if the allegations are proven, then contempt of court proceedings should be initiated," the lawyer responded.
'Search for truth'
Mohammad Ikram Chaudhry, the legal counsel for a second petitioner Advocate Sohail Akhtar, also presented his arguments before the apex court, saying that the commission should search for truth and if contempt of court had taken place, action should be taken against those responsible.
"Since the beginning of the human race, the search for truth has been going on," remarked CJP Khosa, adding: "If we are to search for the truth, what will the judges hearing the central appeal do?"
CJP Khosa noted that if the apex court gives any order, the high court would become restricted by it. "Then how would the high court take any action?"
The counsel said that the decision would not be by the apex court, rather it would be based on the findings of a commission. "I am steering you in this direction," the top judge responded, adding: "No court can take notice on the findings of a commission."
The lawyer said that removing trust in any institution was itself a matter of basic rights, adding that judge Malik's statement should be looked at "extremely carefully".
"There is no doubt that the judge's statements are extremely extraordinary," responded CJP Khosa.
The lawyer said that if statements regarding the judiciary continued, there would be pressure on the high court to make a decision.
Justice Bandial said that the first point was regarding the institution, adding that the judiciary would look into the matter of the judge. "Every day information regarding the matter is coming out, the dust should now settle," he said.
"We want such suggestions through which a decision can be taken without emotions."
Advocate Chaudhry asked for contempt of court proceedings to be initiated.
"Who will look into the allegations against judge [Arshad Malik]?" CJP Khosa inquired, adding: "Will the judge, against whom the allegations have been placed, look into them?"
Chaudhry said that the judiciary was being mocked because of statements and counter-statements being made on the matter. "This is why we are hearing the case," CJP Khosa responded.
The lawyer asked that the judiciary conducts an investigation on the basis of criminal and cyber [crime] laws.
"Are all cases registered in the country and all the investigations conducted done through the orders of the Supreme Court?" asked the chief justice.
'Interference of institutions'
Following a brief break in the proceedings, a third petitioner, Advocate Tariq Asad, personally pleaded his case. He said that a forensic audit into the video should be conducted.
"Sometimes the judge is going to Jati Umra and sometimes he is meeting [people] during Umrah," said Advocate Asad, questioning where the government and agencies were when the "meetings" were taking place.
"This is a case pertaining to the autonomy of the judiciary. Some 'others' are interfering with this institution," he said.
"You are speaking about interference in the institution, yet at the same time you are saying that the institutions should interfere," CJP Khosa replied.
The petitioner responded that institutions were interfering but they were not doing their job.
"The conduct of judge Arshad Malik makes it clear that he has been involved in corrupt practices," Advocate Asad claimed. "The prejudice of a judge fixed in one foreign decision will again go on trial."
The sort of [discussion on] television talk shows these days makes me leave the room, he told the bench.
"Instead of leaving the room, you can press one button and switch off the television," quipped the chief justice, prompting laughter in the courtroom.
The advocate also called for a one-member commission to be formed.
"The government also has the authority to form a commission but you are saying that the judiciary should form a commission," he added.
The chief justice said that the accountability court judge was a subordinate of the Lahore High Court, adding that the government had appointed him on a deputation.
He said that the authenticity of the video was of the judiciary's concern, while the rest were "public matters".
CJP Khosa said that they should also look at how a private video of an individual was recorded and how it was made public.
Security, restricted entry
Ahead of the hearing, the SC beefed up security on its premises.
The SC office explained that in view of the limited seating capacity in the Courtroom No 1, it has decided that the entry into the courtroom will be regulated through special security passes which will be issued by the SP (security) Supreme Court. Only the petitioners or respondents whose cases were fixed will be allowed to enter the court premises. However, advocates and journalists who regularly come for the proceedings will be exempted from passes.
No cellular phone was allowed inside the courtroom.
Video leak controversy
On July 6, PML-N vice president Maryam Nawaz opened a Pandora’s box with a startling claim that the judge "confessed" he had been “pressurised and blackmailed” to convict her father in the Al-Azizia reference. A video containing the judge’s alleged confession during his conversation with a ‘sympathiser’ of the PML-N, Nasir Butt, was screened during a hurriedly called presser at the party’s provincial headquarters in Model Town.
The next day, the judge had denied being under any pressure, but admitted that Nasir Butt was an acquaintance.
The controversy continued to make news as Maryam released two more video clips "in support" of the first one.
On the morning of his ouster, judge Malik gave in a letter to IHC acting Chief Justice Aamer Farooq in which he said that the videos shared by Maryam were fake. He also filed an affidavit before the IHC chief justice along with his letter.
Justice Farooq perused the letter but decided to relieve judge Malik without conducting an inquiry since he is an official of the subordinate judiciary of the Lahore High Court (LHC).
The IHC judge directed the registrar office to write a letter to the law ministry regarding relieving judge Malik of his post and repatriating him to the parent department, the LHC.
Shortly after the announcement, Maryam called for the verdict in the Al Azizia reference against her father to be declared void.